In a sharply divided decision, the U.S. Court of Appeals for the Seventh Circuit sitting en banc has ordered the dismissal of a Bivens damages suit against former Defense Secretary Donald Rumsfeld by two U.S citizens for their torture by U.S. military officials while working as private contractors in Iraq. The suit alleges that Rumsfeld authorized the various interrogation methods used against the plaintiffs, including physical violence and threats of violence, sleep deprivation, prolonged isolation, incommunicado detention, and deliberate exposure to extreme temperatures. I previously blogged about Bivens suits challenging post-9/11 interrogation methods here and here. This latest ruling suggests that even those suits that had the greatest possibility of success--because they involved the mistreatment of U.S. citizens--are nonetheless foundering in the face of new judicially created doctrines of impunity.

While Judge Easterbrook's majority opinion concluded that Rumsfeld lacked the requisite personal involvement for plaintiffs to survive a motion to dismiss, the opinion goes much further. It holds that even those individuals who actually inflicted the torture cannot be liable because military officials are immune from liability for constitutional violations committed against prisoners in their custody.

In dissent, Judge Hamilton, who had authored the original panel decision, effectively critiques the flaws in Judge Easterbrook's opinion. Easterbrook, among other things, distorts the Supreme Court's decisions in Chappell v. Wallace and United States v. Stanley, transforming what was intended as a much narrower bar against military personal suing under Bivens for injuries "incident to service" into a sweeping, no-liability rule forsuits by civilians against the military; misreads legislation which, in precluding damages suits by alien enemy combatants, evinces Congress's understanding that Bivens suits remain available for others; concludes that U.S. citizenship is irrelevant to assessing the availability of a damages remedy for constitutional violations; and expands Ashcroft v. Iqbal, which addressed pleading requirements in the discrimination context, into a general rule against holding supervisors liable under Bivens.

The importance of the issues and the sweep of the Seventh Circuit's decision warrant Supreme Court review. But given the absence of a circuit split, a cert. grant is unlikely. All five circuits in which suits have been brought based on war-on-terrorism detention and interrogation practices have now lined up against Bivens actions: the Seventh Circuit in Vance; the Fourth and Ninth Circuits in Padilla v. Rumsfeld and Padilla v. Yoo; the Second Circuit in Arar v. Ashcroft; and the D.C. Circuit in Doe v. Rumsfeld.

The cases remain troubling precedents nonetheless, with federal judges creating new doctrines to bar civil liability for torture and other mistreatment. The impunity, moreover, is unwarranted. Judges are capable of handling the issues presented by the cases, including those involving classified information, which they handle on a regular basis in criminal matters. And many countries that have experienced far greater turmoil--transitioning to democracy from years of internal conflict and autocratic rule--have managed to find some form of accountability for the human rights violations of the past. In the United States, however, there has been virtually no accountability for the abuses committed after 9/11, notwithstanding the stability of its political and legal system.

One the cruelest ironies in Vance is Judge Easterbrook's (perverse) celebration of American Exceptionalism. In dismissing plaintiffs' reliance on their U.S. citizenship, he writes: "It would be offensive to our allies, and it should be offensive to our own principles of equal treatment, to declare that this nation systematically favors U.S. citizens over Canadians, British, Iraqis, and our other allies when redressing injuries caused by our military or intelligence operations."

Put aside for a moment that this statement is flatly contracted by the record: citizenship, for example, remains a factor in determining the availability of habeas corpus jurisdiction for individuals imprisoned outside the United States and is an essential factor in determining eligibility for prosecution in a military commission rather than the regular court system (only aliens may be prosecuted in military commissions). For Easterbrook, America is exceptional because it does not provide any preferential treatment: if you have been tortured by a U.S. military or intelligence officer, you are out of luck whether you are a citizen or not. What should be offensive to America's allies--and what contradicts its Constitution and international legal obligations under the Convention against Torture--is not the absence of preference, but the absence of any remedy at all.